LEASE AGREEMENT
THIS Lease made and entered into this 28th day of July, 1993, by and
between DIRK INVESTMENTS, INC., a Delaware corporation with its principal office
located 0000 X. Xxxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to
as "Lessor"), and MICROSS DIVISION OF XXXXXX COMPANIES, INC., a corporation duly
organized and existing under the laws of the State of Delaware, with its
principal office at 0 Xxxxx Xxxxx, Xxxxxxxx, Xxxx Xxxxxxxx 00000 (hereinafter
referred to as "Lessee").
WITNESSETH: That Lessor does hereby let, lease and demise unto Lessee the
premises located in the City of Wheeling, County of Ohio, State of West
Virginia, described as follows, to-wit:
DESCRIPTION OF PREMISES
All of the office area containing 9,100 square feet and warehouse space
containing 3,750 square feet of attached warehouse and an additional
warehouse containing 67,150 square feet, including all improvements
therein, as outlined in red on the plot plan dated July 21, 1993 attached
hereto and made a part hereof, "Exhibit A", hereinafter referred to as the
"Demised Premises". Said Demised Premises are a part of a distribution
center complex situated on 43.342 acres of land as shown on the plot plan
dated 7/21/93 attached hereto and made a part hereof, "Exhibit B",
hereinafter referred to as the "Building", designated by street address as
one Xxxxx Xxxxx, Xxxxxxxx, Xxxx Xxxxxxxx 00000, together with the right in
common with Lessor to use and to have ingress and egress on, over and
across and to permit Lessee's employees, invitees and customers to use and
to have ingress and egress on, over and across all the parking, driving,
walking and other common areas of the Building as shown on Exhibit B;
provided, however, that Lessee shall comply with the parking restrictions
set forth in Paragraph 26 of this Lease and shall not block the driveway or
otherwise interfere with the ingress and egress to and from the building;
in consideration of the following mutual covenants, agreements, terms and
conditions hereby agreed to by and between Lessor and Lessee, to-wit:
1. TERM: The term of this Lease and Lessee's obligation to pay rent
hereunder shall commence upon September 1, 1993 and shall thereafter continue
for a period of seven (7)
consecutive years ending on the last day of the seventh (7th) full lease year as
said term lease year is hereinafter defined.
The first lease year shall begin on the date of the commencement of the
term hereof, if the date of commencement of the term hereof shall occur on the
first (1st) day of a calendar month. If not, then the first lease year shall
commence upon the first (1st) day of the calendar month next following the date
of commencement of the term hereof. Each succeeding lease year shall commence
upon the anniversary date of the first lease year without notice by either
Lessor or Lessee any custom, usage, practice, law, statute or ordinance to the
contrary notwithstanding.
2. RENT: Lessee agrees to pay the sum of Twelve Thousand Three Hundred
Eighty-Eight Dollars ($12,388.00) per month as rent, which payments shall be
made without demand by checks made payable to Lessor and mailed by United States
Mail addressed to Lessor or to the address or to whom Lessor may designate in
writing on the first day of every month to be received by the fifth (5th)
business day of every month for which rent is due hereunder.
3. USE: The Demised Premises may be used and occupied by Lessee only for
the manufacture of magnetic ink character recognition ribbons and other office
supplies and the storage and warehousing of same.
4. ASSIGNMENT AND SUBLET: This Lease shall not be assigned nor the
premises sublet in whole or in part by Lessee without the prior written consent
of Lessor. Lessor hereby agrees not to withhold or delay unreasonably Lessor's
consent to assignment or subletting in the event Lessee requests said consent.
Lessor's consent shall not be required for: (a) an assignment or subletting to
the parent or subsidiary company of Lessee; (b) the merger with or consolidation
into any other corporation, or the reorganization or redistribution of the
manner by which Lessee is held, owned or operated; or (c) any other transfer of
the Demised Premises, this
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Lease, or any part of either, occasioned by a consolidation, merger,
reorganization or other sale or similar event involving all or substantially all
of the assets or stock of Lessee, provided that in each instance the successor
to Lessee's interest assumes in full, for the benefit of Lessor, all of the
obligations of Lessee under this Lease. As used herein, the phrase "withhold or
delay unreasonably Lessor's consent" shall not entitle Lessor to demand or
receive in exchange therefore or as a condition thereto an amount or sum of rent
or other financial consideration not expressly required pursuant to the terms of
this Lease.
Any assignment or subletting (including, without limitation, an assignment
or subletting which does not require Lessor's consent) shall not affect or
limit, in any way, the liability of Lessee under the terms of this Lease.
Lessee shall not mortgage, pledge or otherwise encumber the Demised Premises
without the prior written consent of Lessor (which consent shall not be
unreasonably withheld).
Lessor reserves the right to assign its right to receive rents under the
terms of this Lease as collateral for loans from time to time.
5. SIGNS: Lessee, with Lessor's approval (which approval shall not be
unreasonably withheld), shall have the right to construct, erect, place, put,
maintain and control on the Demised Premises and in common areas at points of
ingress and egress to the Building any sign or signs which may be removed by
Lessee at any time provided that: (a) said sign or signs are constructed,
erected and removed in a workmanlike manner and comply with the rules,
regulations, laws, statutes and ordinances of the city and state in which the
Demised Premises are located; and (b) the location, dimensions, design,
appearance and construction of such sign or signs are approved by Lessor in
writing (which approval shall not be unreasonably withheld).
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Prior to the termination of this Lease, Lessee shall remove such sign or signs
and shall repair any damage to the Demised Premises caused by such removal.
6. LESSEE'S EQUIPMENT: Lessee shall have the right to install and
maintain in and on the Demised Premises such equipment as is necessary to the
conduct of its business, all of which shall remain the property of Lessee and
may be removed by Lessee at any time. Prior to the termination of this Lease,
Lessee shall remove Lessee's equipment from the Demised Premises and shall
repair any damage to the Demised Premises which shall have resulted from
removing Lessee's equipment.
Lessee's equipment shall mean fixtures, machinery, equipment, furniture and
furnishings (whether or not affixed to the Demised Premises) installed and
maintained by Lessee for use in connection with the operation of its business
as distinguished from the operation of the Demised Premises as a real estate
unit.
7. ALTERATIONS: Lessee shall have the right to make any interior,
non-structural alterations, additions, changes or improvements on the Demised
Premises at Lessee's cost, provided that said alterations, additions, changes,
or improvements do not cost in excess of One Thousand Dollars ($1,000.00) in
each instance and do not impair the value of the Demised Premises. All other
alterations, additions, changes or improvements on or to the Demised Premises
shall require the prior written consent of Lessor, which consent shall not be
unreasonably withheld. Any alterations, additions, changes or improvements
made by Lessee of the type permitted in this paragraph (including, without
limitation those requiring the prior written consent of Lessor), excluding
Lessee's equipment, shall become a part of the Demised Premises and, at the
expiration or earlier termination of this Lease, Lessee, upon written request by
Lessor, may be required, with the exception of normal wear and tear, to restore
the Demised
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Premises to the condition they were in prior to the making of any said
alterations, additions, changes or improvements.
Lessee shall pay, when due, all claims for labor or materials furnished
to or for Lessee and shall keep the Building free and clear of any mechanics'
or materialmen's liens arising from any alterations, additions, changes or
improvements performed by or for Lessee.
8. REPAIRS: Lessor agrees to maintain in good repair, at Lessor's cost,
the roof, outer walls (which will include the bulkheads under plate glass
windows), downspouts, underground plumbing, exterior lighting, fire protection
(dry system), electrical wiring, ceilings (when damage is due to roof leakage or
failure of Lessor to make repairs Lessor is obligated to make), support of
floors, and structural portions of the Building and Demised Premises, unless
such repairs are required because of the negligence or willful misconduct of
Lessee or Lessee's employees, agents, invitees or contractors (in which event
Lessee shall make such repairs at its sole cost and expense). Lessee agrees to
make repairs to the interior of the Demised Premises including, without
limitation, repairs and seasonal servicing to the air conditioning and heating
equipment serving the Demised Premises. Lessee shall not be required or
obligated to make any repairs to the Demised Premises when the repairs or
replacements are made necessary by reason of fire, flood, windstorm, earthquake
or other casualty covered by standard fire and extended coverage insurance sold
in West Virginia. Lessee agrees to surrender the Demised Premises at the
expiration or earlier termination of this Lease in as good a condition as at the
commencement of the term of this Lease, except Lessee shall not be responsible
for the repair or condition of those portions of the Building and Demised
Premises which Lessor agrees to maintain, nor damage by dry rot, termites,
sinking of floors, ordinary wear and tear, fire, flood, earthquake, windstorm or
other casualty.
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9. WARRANTY: Lessor represents and warrants that Lessor has the
authority to enter into this Lease as Lessor. Lessee represents and warrants
that Lessee has the authority to enter into this Lease as Lessee.
10. FIRE CLAUSE: In the event the Building or the Demised Premises shall
be damaged by fire, flood, windstorm, earthquake or any other casualty to such
an extent that, in the written opinion (certified as such) of a mutually
acceptable licensed architect, they cannot be restored to as good a condition as
they were prior to such damage within one hundred fifty (150) days after the
date of such casualty, Lessor and Lessee shall each have the right to cancel and
terminate this Lease by delivering written notice of such termination to the
other party within thirty (30) days after receipt of such architect's opinion
(with the rental obligation being reduced from the date of such damage to the
date of such termination in such proportion as will compensate Lessee for any
space not usable by Lessee). If Lessor or Lessee does not exercise such right
to cancel this Lease within such thirty (30) day period or if such architect
shall have certified that such repairs can be made within a period of one
hundred fifty (150) days, Lessor agrees to repair the Building and the Demised
Premises with due diligence and, in the meantime, the rent shall be reduced in
such proportion as will compensate Lessee for the space not in proper condition
during such repair period. Notwithstanding any terms to the contrary in this
Lease, Lessor and Lessee may each terminate this Lease if the damage is not
covered by the insurance policies that Landlord must maintain, pursuant to
Paragraph 23 of this Lease.
It is further provided that in the event the Demised Premises is
substantially destroyed by fire, flood, windstorm, earthquake or any other
casualty within one (1) year prior to the expiration or earlier termination of
the lease term, both Lessor and Lessee shall have the mutual right to terminate
this Lease as of the date of such damage with written notice to the other party.
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11. EMINENT DOMAIN: In the event the entire Building is acquired by the
exercise of the power of eminent domain, Lessee shall be relieved, after
possession is required to be surrendered, of all rent payments and other
obligations provided for herein and any rent which has been paid in advance
shall be prorated and a refund made by Lessor for any unexpired period for which
Lessee does not have possession and for which rent has been paid in advance.
In the event only a portion of the Building or Demised Premises (including
parking area which Lessee has the right to use hereunder) is acquired by the
exercise of the power of eminent domain but, in the reasonable opinion of
Lessee, Lessee can no longer satisfactorily operate its business in the space
and/or with the amount of parking area remaining, Lessee shall have the right to
terminate and cancel this Lease effective at the time possession of such portion
of the Building or Demised Premises must be surrendered. To exercise its right
to cancel under this paragraph, Lessee must notify Lessor by written notice,
mailed to Lessor at the address designated for the forwarding of rent payments
due hereunder, not later than fifteen (15) days prior to the time when
possession must be surrendered. In the event Lessee elects to remain, after the
taking of a portion of the Building or Demised Premises through the power of
eminent domain, Lessor agrees to make promptly all necessary alterations,
changes and repairs needed for Lessee's continued occupancy (but only to the
extent funds designated therefore are received by Lessor from the condemning
authority) and the rent due hereunder is to be reduced pro rata in proportion to
the ratio of the number of square feet of space taken to the original number of
square feet.
The rights of Lessee, as set forth in this paragraph, shall in no way
prejudice or interfere with any claim which Lessee may have against the
authority exercising the power of eminent
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domain for damages or otherwise and Lessee specifically reserves its right to
damages against the authority exercising the power of eminent domain.
12. VACATION: In the event Lessee vacates the Demised Premises before the
expiration of the term of this Lease or any extension thereof, which Lessee
shall have the right to do, Lessee shall not thereby be relieved from the
payment of rent or any other of its duties or obligations under this Lease
during the remaining term or any extension thereof.
13. HOLDING OVER: In the event Lessee shall hold over after the
expiration or termination of the term of this Lease or any extension thereof
with prior written consent from Lessor, said holding over shall not be deemed to
be a renewal or extension of this Lease or any extension thereof or the exercise
of any option to extend or renew this Lease, but said holding over shall be
deemed a tenancy from calendar month to calendar month at a monthly rent equal
to the rent for the last month under this Lease. A month to month tenancy
arising by holding over under this paragraph may be terminated by either Lessor
or Lessee giving written notice thirty (30) days in advance to the other party
hereto.
14. QUIET ENJOYMENT: Lessor covenants and agrees that Lessee, on payment
of the rent and the performance of all of the covenants and agreements of this
Lease, shall and may peaceably and quietly have, hold and enjoy the Demised
Premises.
15. RULES OF PUBLIC OFFICERS: Lessee agrees to comply with the rules,
regulations, orders, laws, statutes and ordinances of the duly constituted
public authorities governing the use and occupancy of the Demised Premises, but
Lessee shall not be required to make any repairs, alterations, changes and/or
improvements to the Demised Premises or the appurtenances thereto because of any
requirements of the public authorities (unless such repairs, alterations,
changes and/or improvements are required as a result of or in connection with
any
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business conducted by Lessee on the Demised Premises or any alterations, changes
or improvements which Lessee elects to make to the Demised Premises). In the
event of such requirements by the public authorities which, under this
paragraph, are the responsibility of Lessor, Lessor agrees to make promptly, at
its cost, such required repairs, alterations, changes and/or improvements.
16. LESSEE'S BREACH OF COVENANT: In the event Lessee shall: (a) fail to
make any payment of rent as herein provided when it becomes due, which failure
continues uncorrected for a period of ten (10) days or more after written notice
thereof from Lessor to Lessee; or (b) fails to perform or otherwise violates any
of the covenants, agreements and conditions of this Lease, which violation
continues uncorrected for a period of thirty (30) days or more after notice
thereof from Lessor to Lessee (unless such failure or violation, if it is
curable, requires work to be performed or acts to be done or remedies which by
their nature cannot be performed, done or remedied within such thirty (30) day
period and Lessee shall continue to pursue such cure, it shall have such
additional period of time as may be reasonably necessary to cure same), then in
either of such events, Lessor shall have the right, in addition to all other
rights and remedies available to Lessor at law or in equity, to re-enter the
Demised Premises, repossess said Demised Premises, evict Lessee and/or others
therein, remove the property of Lessee and others therein and in the discretion
of Lessor, relet the Demised Premises. Repossession made by Lessor, as provided
for in this paragraph, shall not relieve Lessee from the payment of rent during
the unexpired portion of the term of this Lease or the unexpired portion of any
extension thereof, but in the event Lessor relets the Demised Premises after
such repossession and prior to the expiration of this Lease or any extension
thereof, Lessee's liability for rent under this paragraph shall be credited
monthly (except Lessee shall receive no surplus
9
over and above its liability for rent) with all rent received by Lessor from
said reletting (after deducting from such rent all reasonable costs and expenses
incurred by Lessor in connection with such reletting) from the time of reletting
to the expiration of this Lease or any extension thereof.
Unpaid installments of rent and other unpaid monetary obligations of Lessee
under this Lease shall bear interest from the date due at a rate equal to the
lesser of twelve percent (12%) per annum or the maximum rate then allowable by
law. In addition to the payment of such interest, if any installment of rent or
any other sum due from Lessee is not received by Lessor within ten (10) days
after written notice thereof from Lessor to Lessee that such amount is due, then
Lessee shall pay to Lessor a late charge equal to five percent (5%) of such
overdue amount.
17. LESSOR'S BREACH OF COVENANT: In the event Lessor shall fail to
perform the covenants and/or agreements of this Lease which are required to be
performed by Lessor and/or there is a breach of any express warranty made herein
by Lessor, then Lessee may require Lessor to remedy said default or defaults by
the service of written notice on Lessor or Lessor's agent at the address to
which rent payments due under this Lease are forwarded and, if at the expiration
of thirty (30) days from the receipt of said notice from Lessee to Lessor
(unless such failure or violation, if it is curable, requires work to be
performed or acts to be done or remedies which by their nature cannot be
performed, done or remedied within such thirty (30) day period and Lessor shall
continue to pursue such cure, it shall have such additional period of time as
may be reasonably necessary to cure same), then in either of such events,
Lessee, in addition to its rights under state and local laws, shall have the
right to remedy said breach of covenants, agreements, and/or warranties and the
cost of such action shall be deducted by Lessee from the unpaid rents which
shall accrue under the unexpired term of this Lease or any extension thereof.
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18. INSPECTION BY LESSOR: Lessor and Lessor's agents, servants and
employees shall have the right to enter the Demised Premises at all reasonable
times to inspect and examine the Demised Premises and to make alterations,
changes or repairs to the Demised Premises and/or to make repairs for the
preservation or maintenance of the Demised Premises. During the last ninety
(90) days of the term of this Lease or any extension thereof, Lessor shall have
the right to post "For Rent" and/or "For Sale" signs on the Demised Premises
and, during said period, Lessor and Lessor's agents, servants and employees
shall have the right to show the Demised Premises to prospective tenants or
purchasers at all reasonable times.
19. ZONING: In the event, during the term of this Lease or any extension
thereof, the Demised Premises may not be used for the operation of the business
which is conducted by Lessee on the Demised Premises on the date of the Sales
Agreement, Lessee shall have the right to terminate this Lease by giving Lessor
at least ten (10) days written notice of its election so to do, the notice to
set forth the termination date selected by Lessee.
20. TAXES: Lessee shall pay all taxes assessed against or by reason of
property which it owns and has the right to remove from the Demised Premises and
all licenses and other fees charged against it by reason of its business
conducted in the Demised Premises (including, without limitation, any service
fees imposed by any local governing authority). Lessor shall pay all real
estate taxes assessed against the subject property.
21. UTILITIES: Lessee agrees to pay for all gas, water, sewerage,
electricity, telephone and other utilities and services used and consumed by
Lessee in the Demised Premises. Lessor, at its sole cost, shall be
responsible for utility service modifications necessary and shall provide
metered billing for Lessee. In the event Lessee should install outside of
the Demised Premises an approved addition, alteration, change, improvement or
a sign that
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serves the Demised Premises, as provided for in Paragraphs 7 and 5 respectively,
Lessee shall be responsible for all costs associated with any additional utility
service necessary to service the addition, alteration, change, improvement or
sign.
22. INSURANCE AND INDEMNITY:
(a) LESSEE'S INSURANCE - Lessee shall, at its sole cost and expense,
procure and keep in full force and effect during the term of this Lease: (i)
comprehensive general liability insurance with respect to the Demised Premises
and the operations of or on behalf of Lessee in, on or about the Demised
Premises, which policies) shall be written on an "occurrence" basis and for not
less than Two Million Dollars ($2,000,000) combined single limit per occurrence
for bodily injury, death, and property damage liability, or the current limit of
liability carried by Lessee, whichever is greater (subject to such increases in
amounts as may be deemed reasonable and appropriate under the circumstances
within the insurance industry); (ii) workers' compensation insurance coverage as
required by law, together with employers' liability insurance coverage; and
(iii) insurance against fire, vandalism, malicious mischief and such other
additional perils as may be included in a standard "all risk" form in general
use in Wheeling, West Virginia, insuring Lessee's furniture, fixtures,
equipment, improvements and personal property in an amount equal to not less
than ninety percent (90%) of their actual replacement cost. In no event shall
the limits of any policy be considered as limiting the liability of Lessee under
this Lease.
(b) POLICY REQUIREMENTS - All policies of insurance required to be carried
by Lessee pursuant to this paragraph shall be written by responsible insurance
companies authorized to do business in the State of West Virginia and shall be
reasonably acceptable to Lessor. Lessee shall provide Lessor with a certificate
of insurance evidencing such coverage provided for herein, together with
satisfactory evidence of renewal at least thirty (30) days prior to the
expiration of
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coverage. Each insurance policy required to be carried by Lessee pursuant to
this Lease shall contain the following provisions and/or clauses: (i) a
provision that the policy and the coverage provided shall be primary and that
any coverage carried by Lessor shall be noncontributory with respect to any
policies carried by Lessee; (ii) a provision including Lessor and any other
parties in interest designated by Lessor an additional insured, except as to
workers, compensation insurance; (iii) a waiver by the insurer of any right to
subrogation against Lessor, its directors, officers, employees, agents and
representatives which arises or might arise by reason of any payment under the
policy or by reason of any act or omission of Lessor, its directors, officers,
employees, agents or representatives; and (iv) a provision that the insurer will
not cancel or change the coverage provided by the policy without first giving
Lessor thirty (30) days prior written notice.
(c) INDEMNITY - Lessee shall indemnify, defend, protect and hold harmless
Lessor and Lessor's directors, officers, employees, agents and representatives
(individually referred to as an "Indemnitee") from and against any and all
claims, demands, liabilities, damages, losses, costs and expenses, collectively
referred to as "Claims" (including, without limitation, attorneys' fees),
arising from or relating to (i) any accident, injury or damage occurring on or
about the Demised Premises; (ii) any accident, injury or damage occurring on or
about any other portions of the Building when such accident, injury or damage
has been caused by any act or omission of Lessee or any of Lessee's officers,
employees, agents, representatives, contractors, licensees, invitees or
subtenants; (iii) the conduct of Lessee's business or Lessee's use or occupancy
of the Demised Premises or the Building; (iv) any activity, work or thing done,
permitted or suffered by Lessee in or about the Demised Premises or the
Building; or (v) any default by Lessee under the terms of this Lease. The
preceding indemnity shall not apply to any Claims arising from Lessor's
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negligent acts or failure to perform any of its obligations under this Lease.
In the event that any action or proceeding is brought against an Indemnitee for
a matter covered by this indemnity, Lessee, at the request of such Indemnitee,
shall defend such action or proceeding by counsel reasonably satisfactory to
such Indemnitee. The provisions of this paragraph shall survive the expiration
or earlier termination of this Lease.
23. GENERAL LIABILITY AND FIRE AND EXTENDED COVERAGE: Lessor agrees to
carry fire and extended coverage insurance on the Building, including the
Demised Premises, in an amount not less than ninety percent (90%) of the
replacement value of said Building and Demised Premises in some good and solvent
insurance company, and Lessor will pay all premiums on said insurance policy or
policies when due. In addition, Lessor shall maintain comprehensive general
liability insurance with respect to the portion of the building and parking
occasioned by Lessor. Said policy shall be written on a per occurrence basis
and for not less than Two Million Dollars ($2,000,000.00) combined single limit
per occurrence. Lessor shall furnish to Lessee a certificate of insurance
evidence the coverage as provided for herein. Lessor's insurance shall not
cover Lessee's furniture, fixtures, equipment improvements and/or personal
property.
24. ESTOPPEL CERTIFICATE: Both Lessor and Lessee each agree that at any
time and from time-to-time, upon not less than ten (10) days prior written
request by the other party to this Lease Agreement to execute, acknowledge and
deliver to the requesting party an estoppel certificate. It is intended that
any statements made in such estoppel certificate may be relied upon by any
lender of either Lessor or Lessee, or such lender's successors or assigns, or by
any transferee or assignee of Lessor or Lessee's interest (or any part thereof)
in the Building or the
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Demised Premises or by any other party providing any form of financing
(including by sale of stock, debt, or otherwise) to either Lessor or Lessee.
25. COMMON AREA MAINTENANCE: Lessor agrees to maintain at all times
during the term of this Lease or any extension thereof, the common areas located
adjacent to the building, including parking areas, driveways, sidewalks and
landscaped areas, in good repair, serviceable, clean, neat and sanitary by the
maintenance of a reasonably smooth all weather surface on all paved areas and
the removal of snow, ice, dirt and trash from parking areas, driveways and
sidewalks.
26. ATTORNMENT/NON-DISTURBANCE: RIGHT TO CURE LESSOR DEFAULTS: This Lease
is and shall be subject and subordinate to the lien of any existing deed of
trust or mortgage (collectively called the "Mortgage") or any future Mortgage
placed upon the Demised Premises provided that, in each such case the mortgagee
shall have executed and delivered to Lessee, in recordable form, a
non-disturbance agreement which provides that, so long as Lessee is not in
default under this Lease beyond any applicable cure period, no default under the
Mortgage and no proceeding to foreclose the same, deed in lieu of foreclosure,
or the exercise or attempted exercise of any right or remedy under the Mortgage
will disturb Lessee's possession or other rights under the Lease (including any
right of Lessee to renew or extend the term thereof) and the Lease will not be
affected or cut off thereby. Lessee shall execute from time to time such
subordination, attornment and other agreements as Lessor or any mortgagee may
reasonably require to effectuate the terms of this paragraph (which agreements
may contain terms and conditions customarily required by institutional lenders),
subject to the reasonable approval of Lessee.
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27. CANCELLATION BY LESSEE: Provided that Lessee is not in default under
this Lease, any time after the first N/A years of the primary term hereof
or after the first year of any renewal period as provided for herein, Lessee
shall have the right and option to terminate the remaining term of the Lease or
any renewal period as the case may be by providing to Lessor sixty (60) days
prior written notice of Lessee's election so to do. In consideration of
Lessee's right of termination as provided for herein, Lessee shall pay to Lessor
concurrently with the delivery of such notice, fifty percent (50%) of the
remaining lease liability calculated from the date of the termination of the
Lease to the original expiration date of the Lease or any renewal period as the
case may be.
28. CANCELLATION BY LESSOR: In the event that Lessor requires the space
contained in the Demised Premises for the purpose of expanding its business
operation or the business operation of any affiliated company of Lessor or
partnership in which Lessor is a partner, then Lessor shall have, at any time
after the expiration of the N/A lease year of the primary term hereof, the
option to terminate the remaining primary term of the Lease or any renewal
period as the case may be, by providing Lessee with one (1) year prior written
notice of Lessor's election to do so.
29. HAZARDOUS MATERIALS: Lessee shall not, without the prior written
consent of Lessor, use, store, manufacture, release, generate, dispose of or
transport any Hazardous Material (as defined in the Sales Agreement) on, under,
about or near the Demised Premises or the Building; provided, however, that
Lessee may, without Lessor's prior written consent, use and store on the Demised
Premises commonly used cleaning materials and the substances described in
attached Exhibit "D" (provided that such cleaning materials and substances are
used and stored in a manner that prevents contamination of the Demised Premises
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and the Building). Any Hazardous Materials used, stored, manufactured,
released, generated, disposed of or transported on, under, about or near the
Demised Premises or the Building by Lessee shall be done so in accordance with
all applicable laws, statutes, codes, ordinances, rules and regulations.
In the event Lessee causes any contamination of the Demised Premises or the
Building, Lessee shall, upon demand of Lessor and at Lessee's sole cost and
expense, promptly take all actions reasonably required by Lessor to remedy any
such contamination. Lessee shall indemnify, defend (with counsel reasonably
acceptable to Lessor), protect and hold harmless Lessor (and Lessor's directors,
officers, shareholders, partners, affiliates, employees, attorneys, agents and
representatives, the foregoing being collectively referred to as "Lessor's
Representatives") from and against any and all claims, demands, liabilities,
obligations, damages, causes of action, judgments, losses, penalties, fines,
costs and expenses (including, without limitation, reasonable attorney's fees)
which Lessor or any of Lessor's Representatives may incur or suffer by reason of
or in connection with any use, storage, manufacture, release, generation,
disposal or transport of any Hazardous Materials on, under, about or near the
Demised Premises or the Building by Lessee or any of Lessee's officers,
employees, agents, representatives, contractors, licensees, invitees or
subtenants. The provisions of this paragraph shall survive the expiration or
earlier termination of this Lease.
30. TIME OF ESSENCE: Time is of the essence with respect to the
performance of all obligations to be performed or observed by the parties under
this Lease.
31. CUMULATIVE REMEDIES: No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
17
32. ATTORNEY'S FEES: If either party brings an action or a proceeding to
enforce the terms hereof or declare the rights hereunder, the prevailing party
shall be entitled to reasonable attorneys' fees. Lessor shall be entitled to
reasonable attorneys' fees, costs and expenses incurred in the preparation and
service of any notices of default for payment of rent, whether or not a legal
action is subsequently commenced.
33. NOTICE: By the terms of this Lease, whenever notice shall or may be
given either to Lessor or Lessee, such notice shall be in writing and shall be
delivered in hand or sent by Certified Mail, Return Receipt Requested, postage
prepaid:
If intended for Lessor, addressed to it at the then current address for
making rental payments or at such other address as may from time to time be
designated by Lessor by like notice; and
If intended for Lessee, addressed to 0 XXXXX XXXXX, XXXXXXXX, XX 00000 or
at such other addresses as may from time to time be designated by Lessee by like
notice.
34. SUCCESSORS: Subject to the terms of Paragraph 4 of this Lease, the
covenants, agreements, terms, conditions and warranties of this Lease shall be
binding upon and inure to the benefit of Lessor and Lessee and their respective
heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have signed and sealed the foregoing
Lease Agreement on the day and year first written above.
DIRK INVESTMENTS, INC. (Lessor)
Attest: By: /s/ Xxxxxxx X. Xxxx
--------------------------------
/s/ Xxxx X. Dirk (Title) Chairman
------------------------------ -----------------------
(Title) Secretary
------------------
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MICROSS DIVISION OF XXXXXX
COMPANIES, INC. (Lessee)
Attest: By: /s/ X. Xxxxxxxxx
--------------------------------
/s/ Xxxx X. Xxxx (Title) Corporate Treasurer
------------------------------ -----------------------
Secretary
STATE OF CALIFORNIA,
COUNTY OF ORANGE, to-wit:
The foregoing Lease was acknowledged before me this 22nd day of July, 1993,
by Xxxxxxx X. Dirk, Chairman, and Xxxx X. Xxxx, Secretary and X. Xxxxxxxxx,
Corporate Treasurer of Dirk Investments, Inc., a Delaware corporation, on behalf
of the corporation.
/s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Notary Public
My Commission Expires:
April 28, 0000
-------------------------
XXXXX XX XXXX XXXXXXXX,
XXXXXX XX XXXX, to-wit:
The foregoing Lease was acknowledged before me this 30th day of July, 1993,
by X. Xxxxxxxxx, Corporate Treasurer of Micross Division of Xxxxxx Companies,
Inc., a corporation, on behalf of the corporation.
/s/ Xxxxx Xxx Xxxx
------------------------------
Notary Public
My Commission Expires:
May 19, 2002
-------------------------
This Lease prepared by:
Xxxxx Xxxxxx Camillch
Schrader, Byrd, Xxxxx & Companion
0000 Xxxxxx Xxxx.
Xxxxxxxx, XX 00000
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EXHIBIT "A"
July 21, 1993
Copy of plat map.
20
EXHIBIT "B" (7/21/93)
FIRST
ALL that certain tract of land situate on the westerly side of the Greggsville
Clinton and Potomac Road, partially in the City of Wheeling and partially in
Richland - Washington District (formerly Richland District), Ohio County, West
Virginia, and being more particularly bounded and described as follows:
BEGINNING at a point in the Greggsville, Clinton and Potomac Road at a common
corner to Lot No. 1, Map of Washington Acres, said map being recorded in the
Office of the Clerk of the County Court of Ohio County, West Virginia, in Deed
Book Volume 309, page 118, and the most southerly corner of the 14 and 111/1000
acre tract of land which was conveyed by Xxxxxxxx Xxxxxxxxxx Farms, Inc., to
Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, by deed dated October 30, 1978 and
recorded in said County Clerk's Office in Deed Book Volume 586, page 399; thence
from said beginning point with said Greggsville, Clinton and Potomac Road, South
21 degrees 46 minutes 40 seconds West 325 and 72/100 feet to a point at the most
easterly corner of the 3 and 276/1000 acre tract of land that was conveyed by
Emma Landmyer to the Wheeling Dollar Savings and Trust Company by deed dated
June 15, 1960 and recorded in said County Clerk's Office in Deed Book Volume
418, page 440; thence leaving said road and with lines of the said 3 and
276/1000 acre tract the following three (3) bearings and distances: North 71
degrees 51 minutes 40 seconds West 334 and 91/100 feet to a point; thence North
71 degrees 47 minutes West 146 and 17/100 feet to a point; thence North 67
degrees 27 minutes West 722 and 61/100 feet to a point in lands now or formerly
owned by August Xxxxxxx; thence with said Xxxxxxx tract the following six (6)
bearings and distances: North 86 degrees 14 minutes 20 seconds East 391 and
42/100 feet to a point; thence North 29 degrees 36 minutes 20 seconds West 403
and 75/100 feet to a point; thence North 19 degrees 41 minutes West 214 and 5/10
feet to a point; thence North 11 degrees 11 minutes West 1567 feet to a point;
thence North 09 degrees 19 minutes East 660 feet to a point; thence South 81
degrees 41 minutes East 165 feet to a point in lines of Xxxxxxxx Xxxxxxxxxx
Farms, Inc.; thence with said Xxxxxxxx Xxxxxxxxxx Farms, Inc., the following two
(2) bearings and distances: South 11 degrees 55 minutes 10 seconds East 412 and
5/10 feet to a point; thence South 21 degrees 55 minutes 10 seconds East (at 550
feet passing the most westerly corner of the 50 and 671/1000 acre tract of land
which was conveyed by Xxxxxxxx Xxxxxxxxxx Farms, Inc., to County Estates, Inc.,
by deed dated April 12, 1979 and recorded in said County Clerk's Office in Deed
Book Volume 589, page 273, and 2,162 and 1/100 feet passing the division line
between the said 50 and 671/1000 acre tract of land and the 14 and 111/1000 acre
tract of land) 2,442 feet to a point; thence continuing with said 14 and
111/1000 acre tract, South 39 degrees 25 minutes 10 seconds East 257 and 4/100
feet to the place of beginning, containing 42.037 acres, more or less, and as
shown on the map prepared by Xxxxxxx and Xxxxxxxxxx, Inc., Civil Engineers and
Surveyors, dated February 24, 1981.
SECOND
ALL that certain tract of land situate in Richland District, Ohio County, and
State of West Virginia, being more particularly bounded and described as
follows:
21
BEGINNING at a point in the Greggsville, Clinton and Potomac Road at the most
easterly corner of the 3 and 276/1000 acre tract of land that was conveyed by
Emma Landmyer to the Wheeling Dollar Savings & Trust Company by deed dated June
15, 1960 and recorded in the office of the Clerk of the County Court of Ohio
County, West Virginia, in Deed Book 418, at page 440; thence from said beginning
point and with said road, South 23 degrees 38' 20" West, 100 and 46/100 feet to
a point; thence leaving said road and with the northerly lines of X.X.
Xxxxxxxxx'x Second Addition, a copy of said plat being on file in said Clerk's
office in Plat Book 1, at page 86 and the easterly and westerly extensions of
same the following two (2) bearings and distances: North 71 degrees 51' 40"
West, 329 and 12/100 feet to a point; thence North 71 degrees 47' West, 146 and
28/100 feet to a point; thence crossing through said 3 and 276/1000 acre tract,
North 18 degrees 13' East, 100 feet to a concrete monument in a northerly line
of said 3 and 276/1000 acre tract; thence with same the following two (2)
bearings and distances: South 71 degrees 47' East, 146 and 17/100 feet to an
iron pin; thence South 71 degrees 51' 40" East, (at 271 and 69/100 feet passing
an iron pin) 338 and 68/100 feet to the place of beginning, containing 1 1/10
acres, more or less, as compiled from surveys by Xxxxxxx & Xxxxxxxxxx, Inc.,
Civil Engineers and Surveyors.
22
State of West Virginia, County of Ohio, to-wit:
I, Xxxxxxx X. Xxxxx, Clerk of the County Commission of said County, do
certify that the forgoing document was admitted to record in this office on the
2nd day of August 1993 at 3:04 P.M.
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Clerk of County Commission
23
